Friday, February 10, 2006

Gribbit is someone who I don't mention in my posts as often as I should. He has helped me out numerous times, when I didn't (and still don't sometimes) know what I was doing. His patience with me stands in stark contrast to his patience with moonbats. This particular post, or excerpts from it, became the subject of some debate on the STOP THE ACLU Blogiversary post comments section, and it deserves to be crossposted here as well:

In 1787, the Congress of the newly formedUnited States met to discuss changes in the Articles of Confederation. Whatresulted was a complete redrafting of the Constitution under a Federalistsystem. The new document contained 7 Articles outlining the duties andresponsibilities of the federal government. It was written very specific oncertain issues to clearly define the duties and restrictions of the federalgovernment. It was written vague on other issues as to leave enough uncertaintythat the matter should be defined by the individual states.

Some of the original signers of the Constitution actually refused to sign it.When a guarantee was made that if they would sign the document to be referred tothe people for ratification, the first order of business would be to write a"Bill of Rights" defining individual rights of the people.

It then it became a responsibility of those who were stressing the federalistgovernment to sell the American people on the idea. From this came theFederalist Papers which were written in order to be reassurances to the peoplethat they would have specific rights and the government would be limited inscope.

Then as promised, the first Congress took up the matter of adopting a "Bill ofRights". Ten Amendments were written into our founding document which outlinedspecific rights and limitations on the government. The catch all of theserights as defined by our first Congress was the 9th and 10th Amendments.

Amendment IX.

The enumeration in the Constitution, of certain rights, shall not be construedto deny or disparage others retained by the people.

Amendment X.

The powers not delegated to the United States by the Constitution, norprohibited by it to the States, are reserved to the States respectively, or tothe people.

In opposition to this new "Bill of Rights" was our first Secretary of theTreasury, author of several of the Federalist Papers, and member of theConstitutional Convention, Alexander Hamilton. He said in Federalist 84,

I...affirm that bills of rights...are not only unnecessary...butwould even be dangerous. They would contain various exceptions to powers, whichare not granted; and on this very account, would afford colourable pretext toclaim more than were granted. For why declare that things shall not be donewhich there is no power to do?

I doubt that Hamilton would fully understand exactly how prophetic this actuallywas.

And everything was fine until the Civil War. In the wake of the war, while itwas still being fought as a matter of fact, several more Amendments were addedoutlawing slavery within the Union and conferring the full rights and benefitsof citizenship to the newly freed slaves. The most prominent of which was the14th.

Amendment XIV.

Section 1.

All persons born or naturalized in the United States, and subject to thejurisdiction thereof, are citizens of the United States and of the State whereinthey reside. No State shall make or enforce any law which shall abridge theprivileges or immunities of citizens of the United States; nor shall any Statedeprive any person of life, liberty, or property, without due process of law;nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several States according to theirrespective numbers, counting the whole number of persons in each State,excluding Indians not taxed. But when the right to vote at any election for thechoice of electors for President and Vice President of the United States,Representatives in Congress, the Executive and Judicial officers of a State, orthe members of the Legislature thereof, is denied to any of the male inhabitantsof such State, being twenty-one years of age,4 and citizens of the UnitedStates, or in any way abridged, except for participation in rebellion, or othercrime, the basis of representation therein shall be reduced in the proportionwhich the number of such male citizens shall bear to the whole number of malecitizens twenty-one years of age in such State.

Section 3.

No person shall be a Senator or Representative in Congress, or elector ofPresident and Vice President, or hold any office, civil or military, under theUnited States, or under any State, who, having previously taken an oath, as amember of Congress, or as an officer of the United States, or as a member of anyState legislature, or as an executive or judicial officer of any State, tosupport the Constitution of the United States, shall have engaged ininsurrection or rebellion against the same, or given aid or comfort to theenemies thereof. But Congress may by a vote of two-thirds of each House, removesuch disability.Section 4.

The validity of the public debt of the United States, authorized by law,including debts incurred for payment of pensions and bounties for services insuppressing insurrection or rebellion, shall not be questioned. But neither theUnited States nor any State shall assume or pay any debt or obligation incurredin aid of insurrection or rebellion against the United States, or any claim forthe loss or emancipation of any slave; but all such debts, obligations andclaims shall be held illegal and void.Section 5.

The Congress shall have power to enforce, by appropriate legislation, theprovisions of this article.

Fast forward to the twentieth century and Justice Hugo Black and other liberalactivists on the court under the spell of the newly formed American CivilLiberties Union. It then became fashionable to attempt to apply therestrictions and requirements that the Bill of Rights holds the federalgovernment to on the states.

Robert S. Sargent, Jr wrote in his essay about Hugo Black the following:

In 1868, in order to protect ex-slaves, the 14th Amendment did applycertain rights that the states couldn't intrude upon: "Nor shall any Statedeprive any person of life, liberty, or property, without due process of law;nor deny to any person within its jurisdiction the equal protection of thelaws." Somehow Hugo Black, in his dissent in Adamson v. California (1947) foundthis to mean that all the rights enumerated in the Bill of Rights applied to thestates: "My study of the historical events that culminated in the FourteenthAmendment...persuades me that one of the chief objects that the provisions ofthe Amendment's first section were intended to accomplish was to make the Billof Rights applicable to the states." One must ask, if this was one of the "chiefobjects," why didn't they put it in the text? (For a scholarly, devastatingrefutation of this interpretation of "the original purpose," see Raoul Berger'sbook on the 14th Amendment, "Government by Judiciary.")

This concept of "Incorporation Theory" goes against the idea of federalismenvisioned in the Constitution. Now that Justice Black's dissent is acceptedjurisprudence, state laws can be reviewed in federal court, which means that theSupreme Court now decides what our rights are. The 9th Amendment in its originalsense is now irrelevant.

And the culmination of this happens in 1973. In the Roe v Wade decision, thecourt decided that a medical procedure regulated or banned under state law wasnot valid because it did not protect a woman's right to privacy in what happensto her body. In other words, the Warren court decided that a state law, in astate matter, was invalid because it did not protect the privacy of theindividual.

Privacy - I can't find it in the Constitution anywhere. The ACLU claims thatit's there. Some liberal Senators would have you believe that it is there, butI can't find it. The words right to privacy do not exist in any of the 7Articles or 26 Amendments of the Constitution. Neither is federal regulation ofmedical procedures. But under the Hugo Black mentality and approach to applyingthe restrictions and powers of the federal government to the states and makingstate laws subject to federal review, has now greatly expanded the reach of thefederal government.

And if we can expand the federal government to so that states laws arereviewable in the federal judiciary, why not expand the reach of theEstablishment Clause. And as such, the ACLU in its arguments have consistentlytried to apply the restriction on the Congress of the United States to theindividual states and local governments.

Hamilton was right.

This was a production of Stop TheACLU Blogburst. If you would like to join us, please email Jay atJay@stoptheaclu.com or Gribbit at GribbitR@gmail.com. You will be added to ourmailing list and blogroll. Over 150 blogs already on-board.

3 comments:

Meg
said...

Oh No! You also don't understand what Hamilton was saying. This is really sad. Please please go and find an authority on what Hamilton was talking about. Are you close to some kind of University? Or maybe you have a friend with a PhD in political science (or maybe even early-American history)? You don't have to take my word for what Hamilton meant, just ask them to tell you.

Lady, why do you think I posted this here? To open it up for debate. Now why don't you just explain exactly how you see what Hamilton said? I said this is a thought-provoking piece, and I salute Gribbit for posting it. I'm going to work now, but hope you will explain your position here, instead of insulting me with your condescending comments about my intelligence.

Honestly, Meg, I didn't even say I agreed with him. You ought to watch how you insult people that you don't even take the time to read carefully. I hope to debate this fully with you, without anyone calling you a moonbat.

Since Meg has not found the time to comment fiurther here, I will say that I find many interpretations of what Gribbit wrote, and the passages he cited. I respect the argument that the States have rights to restrict individual liberties to a greater degree than the federal government does. Local governments have freedom to restrict liberties even further, as anyone who has been prevented from posting a sign on their property can attest.

The ideal of the balance between federal and state power is truly a constitutional debate that needs to continue. Action on it is happening with the confirmation of Justice Alito, thanks to Meg's precious Liberal Senators.

I hate to break it to you, Meg, but there is an alternative way of thinking that is sweeping the land.

I can't speak for Hamilton, but I can speak for myself. I can also publish anyone else's writing that I like.

You show yourself to be a close-minded moonbat with your lack of willingness to follow up your ill-advised comments here at LEAVWORLD.